MEMORANDUM OF LAW ON ARREST WITHOUT WARRANT

MEMORANDUM OF LAW

ON ARREST WITHOUT WARRANT

COMES NOW THE PLAINTIFF, _______________, a living soul, a free Citizen of the State of New Mexico, who respectfully presents and submits this memorandum as evidence and proof of the prevailing and controlling law regarding the matter now before the Court.

ARGUMENTS & STATEMENTS OF LAW

Statement of Claim

The Defendant claims that her arrest by the Plaintiff happened without warrant in violation of fundamental law and is therefore an unlawful arrest. Defendant claims that Peace Officer are only authorized by statute to make arrests for a violation of laws of the state whether there is a breach of peace or a felony committed in the officer presence.

Defendant claims that an officer may arrest a private citizen upon issue of a proper, timely warrant signed by a dejure, bonded judge with a wet blue ink signature based upon a sworn affidavit regarding personal injury by a private citizen.

Defendant claims that a “government employee” is not a “faithful witness” because he/she has a conflict of interest and cannot be trusted to provide reliable, trustworthy testimony. The Magna Carta, upon which common law is based,  prohibited cases from proceeding wherein the only witness of a “crime” was a government agent paid  by the king. FURTHERMORE, the United States Supreme Court has ruled in the case of Briscoe vs. LaHue, 460 US 325 (1983), that Police officers may commit perjury with immunity. This being the case no testimony by a police officer or employee paid by the state can be received by this court and therefore, this case must be dismissed.

Defendant claims she has a fundamental right to resist an unlawful arrest wherein municipal officers working for a municipality for commercial gain attempt an arrest with lethal force without a properly inscribed warrant; that it is not unlawful to resist an unlawful arrest, but that it is unlawful to attempt and unlawful arrest.

The facts of this case lead to the conclusion of law that the Defendant did not have any lawful authority to arrest the Plaintiff. The Defendant had no warrant for the arrest of the Plaintiff, and he alleges that he only saw Plaintiff commit a misdemeanor, i.e., a traffic violation. There was no claim of a felony committed or of a breach of peace committed. At common law, and under the provisions of Due Process of Law, such an arrest without a warrant cannot be made. Since the arrest deprived the Plaintiff of his liberty by an act not pursuant to due process of law, the arrest IS unlawful. Due Process is not determined by the legislature.

It is manifest it was not left to the legislative power to exact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of government, and cannot be so construed as to leave Page I of 13 – Plaintiff’s Memorandum on Arrest Without Warrant congress free to make any process “due process of law,” by its mere will. Murray’s Lessee v. Hoboken Imp. Co., 18 How. (59 U.S.) 272,276 (1855).

Due Process and Common Law

The Constitution of New Mexico says, “The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures” (Article I, Section 10) and “No person shall be deprived of life, liberty or property without due process of law . . .” [Section 18]. The words “due process” do not mean anything which the legislature may see fit to declare to be “due process of law” Slate ex rel. v. Billings, 55 Minn. 466, 474 (1893). Due process was intended to preserve established fundamental rights by requiring that they cannot be deprived except by the established modes of law as existing under the common Jaw. This guarantee that government shall follow a specified and preexisting rule of conduct, process, or procedure is in itself a right the citizen held at common law, and was claimed by the colonists in early America. Thus, “it is clear that the common law is the foundation of that which is designated as due process of law” (6 R.C.L. “Const. Law,” § 435). The constitution guarantees these preexisting rights and procedures in the due process provision.

What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors. Twining v. New Jersey, 211 U.S. 78, 100 (1908).

The expressions ‘due process of law’ and ‘law of me land’ have me same meaning …… The ‘law’ intended by the constitution is the common law that had come down to us from our forefathers, as it existed and was understood and administered when that instrument was framed and adopted. State v. Doherty, 60 Maine 504. 509 (1872).

In interpreting what due process of law is, it has been held that “none of our liberties are to be taken away except in accordance with established principles” Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 620 (1913). Thus the mode of arrest by which one can be deprived of his liberty is to be determined by the preexisting common law principles and modes of procedure. A properly constituted warrant of arrest is a process at common law by which persons could lawfully be deprived of their liberty. The common law on arrest without warrant recognized only certain specific and well defined cases whereby a citizen could be deprived of his liberty. This cannot be abrogated or changed by the legislature.

The common law drew a distinction between an arrest for misdemeanors, such as that which the Defendant arrested the Plaintiff upon, and arrests for felonies. When a felony was committed an arrest could be made without a warrant, but no arrest could be made for a misdemeanor without a warrant unless it constituted a “breach of the peace.'”[1] The misdemeanor traffic violation was not a breach of peace and thus the Defendant needed a warrant to make an arrest for such offense. In determining the law surrounding arrests, the Supreme Court of South Carolina, in the case of State v. Byrd, 72 S.C.104, 51 S.E. 542, 544 (1905), affirmed a prior decision of the Court holding that:

At common law, as a general rule, an arrest could not be made without warrant for an offense less than felony, except for a breach of the peace. 3 Cye. 880; State v. Sims. 16 S.C. 486.15

The fact that the Defendant believed that the Plaintiff committed a misdemeanor and had charged him with a violation of the traffic law, did not authorize him to arrest the Plaintiff. In a New York case, the State Supreme Court held that a city alderman or justice of the peace could not, at common law, arrest or cause an arrest for a misdemeanor not amounting to a breach of the peace, without warrant, though happening in his presence. The Supreme Court, in the case of Butolph v. Blust, 5 Lansing’s Rep. 84, 86 (1871) stated:

At common law an arrest could not be made of a person charged with a misdemeanor except on warrant of a magistrate, unless it involved a breach of the peace, in which case the offender might be arrested by any person present at its commission. (1 Chitty, Criminal Law, 15; Carpenter v. Mills. 29 How. Pro R. 473).

In the very well reasoned and authoritative case of Exparte Rhodes, 202 Ala. 68, 79 So. 462, 464 (1918), the Supreme Court of Alabama related the due process provision to the act of arrests. It asserted that, “‘any seizure or arrest of a citizen is not reasonable, or ‘due process; merely because a Legislature has attempted to authorize it. These phrases are limitations upon the power of the Legislature, as well as upon that of the other departments of government, or their officers.” In determining what was ‘due process’ regarding arrests the Court stated:

It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it; and this has only been recognized in felony, and in breaches of the peace committed in the presence of the officer. Ex pare Rhodes. 202 Ala. 68, 79 So. 462,465; citing, Sarah Way’s Case, 41 Mich. 304, I N.W. 1023 (1879), et al. Also cited and affirmed in Pinkerton v. Verberg. 78 Mich. 573, 44 N.W. 579, 583 (1889); State v. Williams. 45 Ore. 314, 77 Pac. 965, 969, (1904); Adair v. Williams. 24 Ariz. 422, 210 Pac. 853, 856 (1922).

The Alabama Supreme Court in the Rhodes case went on to say that “‘the phrase ‘due process’ must be determined by what it meant at the common law, and when the Constitution was adopted” (p. 469). The Court then cites the case of Tillman v. Beard, 121 Mich. 475, 80 N.W. 248 (1899), in stating:

Officers are justified in arresting without warrant only in cases of felony and breaches of the peace. This is elementary. It is needless to cite authorities.

At one time in the history of American law and jurisprudence, the concept that no one could be arrested for a misdemeanor except with a proper warrant was so basic and “elementary” that it was not necessary to give any authorities to prove it. Yet this basic concept was found to be too restrictive to the ever-growing oppressive government that has gained power in this country. Thus in order for it to control the liberty of citizens, and to enforce its oppressive laws, the corrupt, de facto government has gradually undermined a very basic principle of constitutional law.

In the Pinkerton case, supra, it was held that a police officer could not arrest a woman, without a warrant, upon mere suspicion that she was upon the street for the purpose of prostitution, even under provisions of the city ordinance allowing such arrests. The fact that she bad a reputation of being a “street walker,” and that the officer knew of her reputation and believed she was plying her vocation as such, plus the fact she did not give her name to the officer stating “it was none of his business,” and that she dared the officer to arrest her, did not give the officer grounds to arrest her. The Court said:

If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstance, without complaint or warrant, then there is no limit to the power of a police officer. ••• Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our constitution guaranties. These are rights which existed long before our constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land. Pinkerton v. Verberg, 78 Mich. 573.44 N.W. 579. 582-83 (1889); Larson v. Feenry. 196 Mich. I. 162 N.W. 275. 276-77 (1917).

Under the topic of “Arrest” as found in Vol. 2 of Ruling Case Law, we find the heading, “Constitutional Requirements as to Warrants,” wherein it states:

[T}he fundamental constitutional guaranties of personal liberty protect private individuals in the right of enjoyment of personal freedom without unlawful restraint, and it is universally recognized that no one may be arrested except by due process of law (2 R.C.L. 463. § 21).

Here again we find that this principle of arrest only by due process of law was once universally recognized, yet the Defendant has ignored such process in his arrest of the Plaintiff. The law regarding warrantless arrests was also declared by the Supreme Court of Wisconsin in the case of Radloff National Food Stores, Inc., 20 Wis. 2d 224; 121 N.W. 2d 865, 867 (1963) as follows:

In Stittgen v. Rundle. (1898), 99 Wis. 78,80, 74 N.W. 536, this court established the principle that” An arrest without warrant has never been lawful except in those cases where the public security requires it; and this has only been recognized in felony. And in breaches of the peace committed in the presence of the officer.” This rule was reaffirmed in Gunderson v. Stuebing (1905), 125 Wis. 173, 104 N. W. 149; 1 American Law Reports. Annotated, 585.

The Radloff Case involved a shoplifter who was stopped and arrested by store employees for taking two cartons of cigarettes. The State Supreme Court said that the employees had the right to stop the shoplifter and recover the goods he had stolen from their employer, and were not negligent per se in so doing. However, since the taking of the cigarettes constituted a misdemeanor, the store employees had no right to arrest the shoplifter when they had no warrant to arrest. In the Gunderson Case, the court explained that arrests without warrants were allowed at common law “only where the ends of justice would be defeated without it,” and that it “must be confined to cases of strict public necessity.”

Requisite of a Warrant

Where a person was arrested without warrant and charged with “public drunkenness,” which resulted in charges of “resisting arrest,” it was held by the Supreme Court of North Carolina that the arrest was illegal as the state failed to make a prima facie case by showing that the defendant’s conduct at the time of arrest amounted to either an actual or threatened breach of peace. The court said “it is manifest that mere drunkenness unaccompanied by language or conduct which creates public disorder amounting to a breach of the peace, will not justify arrest without a warrant,” and that “not every misdemeanor is a breach of the peace.” In a very well-reasoned decision on the subject of arrests, the Court held the following:

It has always been the general rule of the common law that ordinarily an arrest should not be made without warrant and that, subject to well-defined exceptions. an arrest without warrant is deemed unlawful. 4 BI. Comm. 289 et seq.; 6 C.J.S., Arrest, §. 5. p. 579. This foundation principle of the common law. designed and intended to protect the people against the abuses of arbitrary arrests, is of ancient origin. It derives from assurances of Magna Carta and harmonizes with the spirit of our constitutional precepts that the people should be secure in their persons. Nevertheless, to this general rule that no man should be taken into custody of the law without the sanction of a warrant or other judicial authority, the processes of the early English common law, in deference to the requirements of public security, worked out a number of exceptions. These exceptions related in the main to cases involving felonies and suspected felonies and to breaches of the peace (authorities cited). Slate \I. Mobley, 240 N.C. 476, 83 S.E.2d 100, 102 (1954).

The overall opinion of the court stressed the principle of the common law as controlling in arrests, thus characterizing as erroneous the view that any offense in the presence of an officer is arrestable without warrant. In Texas it was held that an arrest without a warrant, for selling in the officer’s presence a railroad ticket in violation of a city ordinance prohibiting the selling of such tickets, was unlawful, as the offense charged was not a felony, nor an offense “against the public peace.” K. & T. Ry. Co. v. Warner, 19 Tex. Civ. App. 463 (1898).

Sheriffs, constables and other officers under the executive branch of government had always been recognized as having authority to arrest for felonies committed and for misdemeanors amounting to a breach of peace. But this is the extent of their power to arrest without a warrant, and this constitutional principle is well-grounded in ancient common law safeguards of individual liberty:

In England, under the common law, sheriffs, justices of the peace, coroners, constables, and watchmen were entrusted with special powers as conservators of the peace, with authority to arrest felons and persons reasonably suspected of being felons. * * • Conservators of the peace also had the authority to make arrests without warrants in case of a misdemeanor which involved a breach of the peace committed in the presence of the officer making the arrest. 2 Ruling Case Law, p. 446; Orick v. State. 105 So. 465, 469 (Miss., 1925); Grahm v. Stare, 143 Ga. 440, 85 S.E. 328, 330 (1915); Kennedy v. Siore, 139 Miss. 579, 104 So. 449, 450 (1925); Wilson v. Town oj Mooresville, 222 N.C. 283, 22 S.W.2d 907, 911 (1942); People v. McGurn, 341 Ill. 632, 173 N.E. 754, 756 (1930).

It has been held that constitutional provisions of rights are to be interpreted according to “the common and statute law of England prior to the emigration of our ancestors,” and by the law established here before the Constitution was adopted. “Under the common law the powers of state agents were limited and the requirements for an arrest warrant was strictly enforced” United States v. Tarlowski, 305 F. Supp. 112, 116 (1969). This procedure for arrest is part of the “due process of law” provision of the constitution which protects citizens from the arbitrary infringement of their right to personal liberty. Thus, any specific authority for arrests must be based upon the common law procedures that allowed a deprivation of one’s liberty. This was so held by the Supreme Court of Michigan as follows:

It has already been decided that no arrest can be lawfully made without warrant, except in the cases existing at common law before our constitution was adopted. People v. Swift, 59 Mich. 529, 26 N.W. 694, 698 (1886).

Since liberty cannot be deprived except by the law of the land. or due process of law, no statute or ordinance can constitutionally be enacted which allows arrests without a warrant for any purpose the legislature decides. Due process is a limitation upon the legislature, and thus a legislative statute cannot be the due process by which one can be deprived of his liberty by arrests.

In a legal article titled, “Arrest With and Without a Warrant,” written in the University of Pennsylvania Law Review, 75, No.6, April, 1927, p. 485, numerous authorities were cited in support of the following proposition:

It is usually said that not even a peace officer is privileged to make an arrest without a warrant for a misdemeanor which does not amount to a breach of the peace, and there are many cases which expressly deny the privilege to arrest for such a misdemeanor (p. 486).

In the Annotation of the American Law Reports, 1, p. 585, is found a legal study titled: “Constitutionality of statute or ordinance authorizing an arrest without a warrant,” in which the following is stated:

It has been stated that in cases less than a felony an arrest could only be made without warrant, where there was a breach of me peace in the presence of the person arresting (cases cited).

“The limits to the power of arrest by a constable, without process, was well defined at common law…. To prevent the escape of a felon, he had authority to arrest anyone whom he reasonably suspected to have been engaged in the perpetration of a felony. To prevent breaches of the peace, he had the right to arrest any person who was engaged in, or in his presence threatened to engage in, an affray or other breach of the peace. Beyond this, the law did not allow him to exercise the function of determining whether there was a sufficient case of the violation of a law to justify an arrest.” Reed, J., in Newark v. Murphy (1878) 40 N.J.L. 145.

After this excerpt the law report stated that “the foregoing statement from Newark v. Murphy is in accord with the weight of American opinion.” Those cases which seemed to deviate from this proposition are those which have upheld arrests for certain acts that were unlawful at common law, such as “streetwalkers.”

In Tiedeman’s “Treatise on the Limitations of Police Power” (1886) § 33, is found the requirements for a lawful arrest and the exceptions to a warrantless arrest: 33. What constitutes a lawful arrest. – As a general proposition, no one can make a lawful arrest for a crime, except an officer who has a warrant issued by a court or magistrate having the competent authority:

33a. Arrests without a warrant.- Although it is the general rule of law that there can be no arrest without a warrant of the nature just described, yet there are cases in which the requirement of a warrant would so obstruct the effectual enforcement of the laws, that the ends of justice would be defeated. For public reasons, therefore, in a few cases the personal security of the citizen is subjected to the further liability of being arrested by a police officer or private individual without warrant. But the right thus to arrest without a warrant must be confined to the cases of strict public necessity. The cases are few in number, and may be stated as follows:

When a felony is being committed, an arrest may be made withom warrant to prevent any further violation of the law.

When the felony has been committed, and the officer or private individual is justified, by the facts within his knowledge, in believing that the person arrested has committed the crime.

All breaches of the peace, in assaults and batteries, affrays, rims, etc., for the purpose of restoring order immediately.

The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, or on view a breach of the peace, has never been extended to any and all misdemeanors. While there have been some erroneous decisions that have recognized statutes authorizing arrests for misdemeanors that do not constitute a breach of the peace, none are based upon the meaning of due process of law. Thus arrests are not lawful where only a misdemeanor occurs unless it is of the nature of a ‘breach of peace.’

At the common law an officer had no authority to make an arrest for a misdemeanor though committed in his presence unless it involved a breach of the peace. Plaintiff’s Memorandum on 20 right of personal liberty is a very high prerogative right, and to deprive one of (hat right, without due process of law. we must find specific authority for doing so. It cannot be left to inference or some strained construction of statute or ordinance. State v. Lutz, 85 W.Va. 330; 101 S.E. 434, 43 (1919).

The specific authority for arrests is grounded in the ancient settled maxims of law, which no statute can abrogate without violating the ‘due process of law’ provision of the constitution. Thus a warrant must be obtained for a misdemeanor that is not a ‘breach of peace.’ The supreme Court of Minnesota has stated on several occasions that even in the case of a felony an “arrest and search should not be made without a warrant unless there is a compelling necessity to do so.” State v. Mastrian, 285 Minn. 51, 57 (1969).

The supreme Court of Rhode Island in declaring the requirements at common law for an arrest stated:

That law permitted an officer to arrest without a warrant on reasonable suspicion based on his knowledge that a felony had been committed .••• In all other cases, except in the case of a misdemeanor amounting to a breach of the peace committed in his presence, an officer had no authority, at common law, to arrest without a warrant (authorities cited) Kominsky v. Durand, 64 R.J 387, 12 Atl.2d 652, 654 (1940).

In American Jurisprudence, , Vol. 5, under the subject of “Arrest,” sections 26 and 28, pp. 716, 718, it states:

At common law. a peace officer cannot arrest without warrant for a misdemeanor, although committed in his presence, unless a breach of peace is involved. At common law, the right to arrest for a misdemeanor committed in the presence of the officer is limited to those offenses which amount to a breach of the peace. The basis for the rule is that arrest without warrant is permitted, in cases less than felony. not for the apprehension of the offender, but only for the immediate preservation of the public peace; and, accordingly, when the public peace is not menaced, a warrant is necessary. (authorities cited, see also section 22).

In Corpus Juris Secundum, 6A, under the subject of “Arrest,” and under the heading of “Arrest or Detention Without Warrant” § 10, p. 17, it is written:

At common law, however, it has always been the rule that, except in cases where the public security has demanded it, arrest without a warrant is deemed to be unlawful.

“Due process of law,” which declares that no citizen shall be deprived of any of his rights of life, liberty or property, unless by the law of the land, or the judgment of his peers (Minn. Canst., Art. I, Sec. 2 & 7), is the controlling factor in the matter of the arrest made by the Defendant. An arrest is a deprivation of one’s liberty and the due process that must be followed in an arrest is that process which existed at common law. To prevent the exercise of arbitrary power at the discretion of government, it was deemed wise to secure the principles already settled in the common law upon this vital point of civil liberty in written constitutions (Cooley, Lim. 364 and notes).

Warrant Where a Chicago policeman arrested a man for “vagrancy,” the officer was found guilty by a jury of false imprisonment. The Supreme Court of Illinois upheld the conviction of the policeman and declared the rule of law regarding arrests without warrants: Blackstone says:

“The constable hath great original and inherent authority with regard to arrests. He may, without warrant, arrest anyone for a breach of the peace committed in his view, and carry him before a justice of the peace; and in case of felony actually committed, or a dangerous wounding whereby felony is likely to ensue, he may, upon probable suspicion, arrest the felon, and, for that purpose, is authorized (as upon a justice’s warrant) to break open doors, and even to kill the felon, if he can not otherwise be taken.” 4 BI. Comm. 292.

In all other cases, however, the authorities are uniform. a constable or policeman has no authority to make an arrest without a warrant (authorities cited) Stanley v. Wells. 71 111. 78, 82 (1873).

In a case for false imprisonment, the Supreme Court of Maine examined the law regarding arrests and held:

“The principles which, by the common law, regulate the right to arrest, or cause an arrest, without warrant, have been long settled both in this country and England; and, by these principles, the rights of these parties must be determined.”

After citing numerous cases involving the authority to arrest, the Court stated:

In many of these cases it seems to have been held that the authority of an officer to arrest for misdemeanor, without warrant, is limited to breaches of the peace or affrays[2], committed in his presence. Palmer v. Maine Cent. R. Co., 42 Atl. 800, 803, 92 Me. 399 (1899).

In a case involving a state liquor prohibition law, a man, while walking down along a public street, was accosted by a police officer, and asked if he had any liquor on his person. He replied that he did. Thereupon the officer searched him and found a pint bottle of liquor in his inside coat pocket. He was then taken to the police station. The State Supreme Court of Wisconsin said that when the police officer stopped the man he was illegally arrested and was illegally searched, as he had NO warrant to do either. The Court said that,

“it is a serious thing to arrest a citizen, and it is a more serious thing to search his person” and it must be done “in conformity to the laws of the land.”

Regarding the law on arrests it held:

At common Law arrests for misdemeanors were not permissible without a warrant except for acts committed in the presence of the officer causing a breach of the peace. Allen v. State, 183 Wis. 323, 197 N.W. 808, 8\0, 811 (1924).

Thus in order that the citizen’s sacred right of liberty be secure and preserved, it has always been fundamental law that arrests without warrant were not deemed lawful, with only a few well-established exceptions of felonies and breaches of peace. The liberty of citizens would never be safe if such principles could be determined and thus abrogated by statute. Therefore these principles surrounding arrests are regarded as fundamental law under OUT American system of government, as held by the Supreme Court of Michigan:

Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant except in cases of felon, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception, in cases of breaches of the peace, has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence. Yerkes v. Smith, 157 Mich. 557. 122 N.W. 223, 224 (1909), citing: Robison v. Miner. 68 Mich. 549.557-58. 37 N.W. 21, 25 (1888).

In the Yerkes case, it was held that the playing of baseball on Sunday did not necessarily involve a breach of peace justifying an arrest, though it may cause a breach of peace. The Court said that before a summary arrest can be made for a breach of the peace, not only must overt acts be committed in the presence of the officer, but they must be violent and dangerous acts of some sort. In the Robison case, the Court held that a liquor law ordinance which allowed arrests without process was unconstitutional because it was not pursuant to due process of law. Where a man was arrested for public drunkenness, the question arose whether this was an offense for which one could be arrested without a warrant. The Supreme Court of Appeals of Virginia declared the law on arrests:

The common law relating to arrest is the law on that subject in Virginia. At common law a peace officer may arrest without a warrant for a breach of the peace committed in his presence, but for no other misdemeanor. Galliher v. Commonwealth, 161 Va. 1014. 170 S.E. 734. 736 (1933). authorities cited.

The common law on arrest is the same in every state, as due process of law has the same meaning throughout America. The security of the citizen’s liberty in this country is to be more highly regarded than it was in England under the common law. To say it is less regarded is to make a mockery of the Revolution.

In a New Jersey case a man was arrested by two city policemen on orders of their superior to do so, alleging that he was guilty of disorderly conduct, and was taken to a police station and held overnight. This was done without any charge or complaint made against the man and without any warrant, the only authority for the arrest was that the officers were told to do so. In a suit for false imprisonment it was held by the Supreme Court of New Jersey that the arrest was without authority and gave the following opinion:

The legal principle underlying this case and the one to be applied to the facts is firmly embodied in the roots of the common law, which has been handed down to us from early times unimpaired, in its full vigor, for the protection of personal liberty, against illegal arrests. The liberty of the person is too important a matter to the state to be interfered with without the safeguards with which the law guards such invasions. This court has said: The limits to the power of arrest by a constable, without process, was well defined at common law. The regard for liberty of the person was so great that the common law did not confer upon a mere conservator of the peace the power to touch the person of the subject, of his own volition, except in those cases when the interests of the public absolutely demanded it. Collins v. Cody, 95 N.1. Law 65, 113 Atl. 709, 710 (I920).

In a Pennsylvania case a woman was arrested for causing and procuring to be made, loud and annoying sounds and noises at late hours of the night, in a certain tent near a city street, by beating upon a drum. Upon indictment her counsel moved that the indictment be quashed as she was arrested without affidavit and warrant while she was in a tent upon private property. It was held that the arrest was unlawful as the act was such that summary arrest was not justified and due process required a warrant for such arrest:

It is the undoubted right of every person in this community not to be deprived of liberty without due process of law, and if the defendant has been arrested without due process of law, the indictment against her cannot be sustained. * * * It has long been recognized that arrests without warrant are justified in cases of treason, felony or breach of the peace, in which actual or threatened violence is an essential element: I Hale’s P.C .• 589: 2 Hawkin’s P.C., ch. 13, sec. 8; 1 Burns, 1., 287; 4 Blackstone, 292; 9 Bacon, Abrid.,468; 1 Chitty Cr. Law. 15; Clark’s Criminal Procedure, 39; Russell, Crimes, vol. 3, page 83; 4 Amer. and Eng. Ency. of Law, 902. Commonwealth v. Krubeck, 8 Penn. Dist. Rep. 521, 522 (1899).

It must be remembered that, “Not every misdemeanor involves a breach of the peace.” Commonwealth v. Gorman, 192 N.E. 618, 620. Under the common law, acts that were malum per se, that is wrong or unlawful by their nature, were often felonies or breaches of the peace, and subject to arrest without warrant. But that is not the law for an act that was only malum prohibitum, being made unlawful only by statute, and without such enactment were otherwise innocent acts. The law asserts that for such statutory misdemeanors, not amounting to a breach of the peace, there is no authority in an officer to arrest without a warrant.

As a general principle, no person can be arrested or taken into custody without warrant. But if a felony, or a breach of the peace, has, in fact, been committed by the person arrested, the arrest may be justified. Burns v. Erben, 40 N. Y. 463, 466 (1869); see also Cunningham v. Baker, 104 Ala. 160, 16 So. 68,70 (1894).

While the “search and seizure” provision of the constitution regulates the manner in which warrants can be issued, it is the “due process” clause which protects citizensfrom unlawful arrests without warrant:

No person shall be deprived of life, liberty, or property without due process of law.”And, under like restrictions in the constitution, it has been held in some states that arrests shall not be made without warrant, except for felonies, and for breaches of the peace committed in the presence of the officer arresting. North v. People, 139 Ill. 81, 28 N.E. 966, 972 (1891).

Thus, where an arrest is made without warrant, in a case not involving a felony or breach of peace, the arrest is unlawful. “Arrest without warrant where a warrant is required, is not due process of law, and arbitrary or despotic power no man possesses under our system of government.” Thus when “a police officer exceeds his powers in making an arrest he becomes a trespasser” and be is liable for false imprisonment, Muscoe v. Commonwealth, 86 Va. 443, 10 S.E. 534, 536.

For other authorities on this matter see: 1 Am. Law Rep., Anno., 585, et. seq.; v. Carey, 12 Cusb. 246 (Mass., 1853); 6A CJ.S., ‘Arrest’ § 10, p. 17; Andcrson,A Treatise on the Law of Sheriffs, Vol. I, § 166 (1941); Hill v. Day, 168 Kan. 604, 215 P.2d 219; Lee v. State, 45 Tex. Cr. R. 94,74 S.w. 28 (1903); 22 Mich. Law Review 673, 703-707; Ulvestad v. Dolphin, 278 P. 681, 684 (WaSh. 1929); In re Kellam, 55 Kan. 700, 41 P. 960, 961 (1895); Pavish v. Meyers, 225 Pac. 633 (Wash., 1924); Delafoile v. State, 54 NJ.L. 381, 24 All. 557, 558 (1892); Giroux v. The State, 40 Tex. 99, 104 (1874); (1892); Staker v. U.S., 2 F.2d 312, 314 (1925); Poner v. State, 52 S.E. 283, 285 (Ga. 1905); Cave .v Cooley, 152 P.2d 886 (N.M.).

CONCLUSIONS

It is a maxim of law that, “Liberty is more favored than all things” (Dig. 50, 17, 122). Thus the law favors liberty above all things and applies the most liberal interpretation to it.  The common law rule regarding the procedure and process for arrest was established in this country. In Allor v. Wayne Co., 43 Mich. 76, 97, 4 N. W. 492, 495-96  (1880), Mr. Justice Campbell says:

The constitution has also provided that no one shall be deprived of liberty without due process of law, and has provided that no warrant shall issue except upon oath or affirmation establishing probable cause. It has been settled for centuries, and the doctrine has been recognized here, that except in cases of reasonable belief of treason or felony, or breach of the peace committed in presence of an officer, there is no due process of law without a warrant issued by a court or magistrate upon a proper showing or finding.

It is thus fundamental that “the due process clause of the Constitution protects the citizen from unlawful arrests.” State v. Quinn, 97 S.E. 62, 64, (S.C. 1918). By the common law, which is that law due process guarantees, a citizen cannot be summarily arrested when he is found violating a law that is only a misdemeanor. A warrant must first be acquired to arrest such a person pursuant to due process of law. If that which constitutes due process of law is made to depend upon the will of the legislature as expressed in a statute or charter, then no fundamental principles of law or rights are perpetuated or secured against abrogation.

An arrest is a deprivation of one’s liberty. The NM State Constitution requires that,

 “No person shall be deprived of life, liberty or property without due process of law . . .” [Article I, Section 18].

The words “due process” do not mean anything which the legislature may see fit to declare to be “due process of law” Slate ex rel. v. Billings, 55 Minn. 466, 474 (1893).

The law is very jealous of the liberty of the citizen. Where the offense is less serious, the greater the formality prescribed for the exercise of the power which can deprive the citizen of his liberty. Poner v. State, 124 Ga. 297, 52 S.E. 283, 285 (1905). The citizen cannot be summarily deprived of his liberty because of his infraction of some ordinance or statute, unless at common law he was liable to arrest. The misdemeanor traffic statute involved in this case is such that it does not allow the Defendant to arrest the Plaintiff without the formality of a warrant. Therefore, the Defendant is guilty of false imprisonment for arresting the Plaintiff without authority of law.

The foregoing proves that the common law surrounding arrests was always recognized in this country and is thus a requirement for ‘due process’ in depriving the Plaintiff of his liberty. It is the “law of the land.” As such, these principles are constitutional mandates and cannot be abrogated by mere statutes.

Teste Meipso: With Christ as my witness, the above brief is true and correct to the best of my knowledge, information, and belief.

Submitted this ________ day of __________ in the year of the appearing of His Majesty, the Lord Jesus Christ, _____________.

_______________________

Name

His Majesty’s Servant,

[1] Breach of Peace: Examples include using abusive or obscene language in a public place, resisting a lawful arrest, and trespassing or damaging property when accompanied by violence. West’s Encyclopedia of American Law, edition 2.

[2] Affray: fighting between two or more people.